Public records lawsuit against City of San Diego and the San Diego Police Department results in documents detailing Stingray usage by police to be released. NBC 7's Mari Payton reports. (Published Monday, March 21, 2016)

A lawsuit brought against the City of San Diego and the San Diego Police Department (SDPD) by the First Amendment Coalition (FAC) asking for records about policies, rules and procedures they use for Stingray surveillance is allowing the public, for the first time, to see how the technology is being used by the San Diego Police Department.

In its initial response, the SDPD said the information was exempt from disclosure. Details on the agency’s IMSI catcher system (Stingray) was confidential, the police said, protected under the state’s evidence code. Neither the public nor the media could have details about their electronic tracking system that had at one time been used by intelligence agencies against enemies of the United States.

An IMSI catcher acts like a cell tower; originally created to take advantage of “holes” in cellular coverage. The technology has been around for nearly two decades but the SDPD didn’t start using it until late 2010. Documents released in response to Freedom of Information Act requests from the media and public interest groups like the American Civil Liberties Union, reveal cities like Baltimore have been using cell site simulators since 2007.
NBC 7 Investigates first reported evidence that local law enforcement use the technology last year. The Stingray is manufactured by Harris Corporation and is described as a device “capable of tracking the signal of cellular telephones even if the person has disabled GPS capabilities.”

The SDPD rejected citizens and media requests for information about their use of the stingray, including those from NBC 7 Investigates.

In addition to filing public records request, NBC 7 Investigates asked the San Diego City Council for information about how the SDPD uses Stingrays. City council members said they never reviewed the program.

San Diego City Councilman David Alvarez has asked for a review of “how the equipment is used and how private citizens are protected from inappropriate monitoring by the Police Department.”

Attorney Kelly Aviles and her client, FAC, filed a lawsuit against the SDPD and the City of San Diego in order to obtain documents detailing how the technology is used locally.

FAC agreed not to seek technical information about the device, Aviles said.

“We were only interested in whether the City had the device, how they were using the device, and if there was any judicial oversight,” Aviles told NBC 7 Investigates. “We didn’t need more technical details about how it was manufactured, but we did want to make sure the public understood just how intrusive the technology really is.”

According to Gerry Braun, Director of Communications for the San Diego City Attorney’s Office, “The SDPD mishandled the CPRA (request).” In an email to NBC 7 Investigates, he said, “they had a second chance to get it right, and did. The City Attorney’s Office does not approve or disapprove of the release of documents.”

In the proposed settlement, Aviles and FAC are requesting $70,000 in reimbursement for attorney’s fees but Aviles said money was never the object. “We weren’t in this for the money,” she said. “We thought the police were improperly refusing to turn over information that should be made public.”

City Council will decide in open session in the next few weeks whether to sign off on the City Attorney and FAC conditional settlement.

NBC 7 Investigates reviewed all the documents released as a result of the lawsuit and found 26 different cases between December 2010 to March 2015, where the SDPD using the technology to investigate various crimes. The logs and how the records were kept are not consistent and contain redactions.

SDPD had originally promised both the FBI and Harris Corporation they wouldn’t disclose details on the Stingray. For the first time the agreements the police signed with the Harris Corporation is being made public. Click here to view them.

In a statement to NBC 7 Investigates, FBI Special Agent Darrell Foxworth said the non-disclosure agreements “are intended to prevent unauthorized disclosure of sensitive law enforcement information to the general public” and “is not to be construed to prevent law enforcement from disclosing to the court or a prosecutor the fact that this technology was used in a particular case.”

This is one of a series of posts from NBC 7 Investigates highlighting the public’s right of access to information. The stories were published to coordinate with Sunshine Week, an annual campaign bringing attention to federal and local access issues. In California, the public is able to request information from government agencies, offices and officials through the California Public Records Act. For more information on how to request information click here.